State v. StroudÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-59

Filed: 7 March 2017

Duplin County, No. 12 CRS 051891

STATE OF NORTH CAROLINA

v.

HERBERT LEE STROUD

Appeal by Defendant from judgments entered 1 May 2015 by Judge W. Allen

Cobb Jr. in Superior Court, Duplin County. Heard in the Court of Appeals 22 August

2016.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sandra
Wallace-Smith, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel
Shatz, for Defendant.

McGEE, Chief Judge.

Herbert Lee Stroud (“Defendant”) appeals from judgments entered after a jury

found him guilty of first-degree felony murder, larceny, robbery with a dangerous

weapon, and possession of stolen goods.

I. Background

The body of Henry Lionel Bouyer, Jr. (“Bouyer”) was discovered in a shallow

ditch on the side of Carrolls Road in Warsaw, North Carolina, in the early morning
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Opinion of the Court

hours of 21 August 2012. Dr. Anuradha Arcot (“Dr. Arcot”), the forensic pathologist

who performed the autopsy, testified Bouyer died from three shots fired from a

shotgun at close range – one to his neck, a second to his back, and a third near his

groin. Dr. Arcot was unable to determine a specific time of death, and could only say

that Bouyer died sometime within the twenty-four hours prior to the discovery of his

body. The State presented a timeline of the events surrounding Bouyer’s death.

A few days prior to the discovery of Bouyer’s body, Defendant and his stepson,

Jeremy Stephens (“Stephens”), visited the home of Travis Jones (“Jones”), a

mechanic. Defendant and Stephens asked Jones what alterations he could make to

the appearance of a motorcycle. Jones replied that if he was provided the necessary

parts and was paid for his labor, he could make any modifications they desired.

Defendant and Stephens did not have a motorcycle with them on that day.

Around 6:00 p.m. on 20 August 2012, Bouyer drove his motorcycle to a BP

station in Warsaw to buy a lottery ticket. Bouyer’s motorcycle, a Suzuki GSXR 1000,

was a distinctive black and yellow color with a Joker emblem painted on its side.

From the BP station, Bouyer drove to a barbershop for a haircut, arriving around

6:45 p.m. While receiving his haircut, Bouyer made and received between five and

ten phone calls, annoying his barber and friend, Martin Batts (“Batts”). Bouyer paid

Batts with cash from his wallet, and left on his motorcycle between 7:15 p.m. and 7:30

p.m.

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Bouyer was next seen at the Small Towns Convenience Mart (“Small Towns”)

in nearby Magnolia, North Carolina. Ivey Chestnutt (“Chestnutt”), a clerk at Small

Towns, saw Bouyer enter the store around 7:30 p.m. Chestnutt and Bouyer began a

conversation, during which Bouyer received a number of phone calls. After finishing

one of his phone calls, Bouyer told Chestnutt he had “a guy that wants to buy my

motorcycle.” Bouyer explained that he “ran it out to him for a couple days, and right

now he wants to keep bugging me, wanting [me] to rent the motorcycle out to him or

wanting to buy it.” Bouyer added that if the unnamed person would pay him

$5,000.00, he would sell that person the motorcycle. Bouyer received one more phone

call, said goodbye to Chestnutt, and left.

Bouyer rode his motorcycle back to the BP station in Warsaw to meet with

Defendant and Stephens. Dedra McGowan (“McGowan”), a clerk at the BP station,

saw Bouyer enter the BP station first, followed by the Defendant shortly thereafter.

After speaking inside the BP station for only a moment, Bouyer and Defendant left

the station and continued talking in the parking lot with Bouyer sitting on his

motorcycle, and Defendant and Stephens sitting in Defendant’s Jeep Cherokee (“the

Jeep”). McGowan testified that the three “looked comfortable,” and “looked like they

knew each other already.” Surveillance footage from the BP station confirmed

McGowan’s testimony, showing Bouyer and Defendant inside the BP station for a

short period of time, and also Bouyer, Defendant, and Stephens talking in the parking

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Opinion of the Court

lot for about four minutes. Following this conversation, Defendant and Stephens left

the parking lot at 8:59 p.m. in Defendant’s Jeep, and Bouyer headed in the same

direction on his motorcycle seventeen seconds later. No testimony presented at trial

tended to show Bouyer’s whereabouts after 8:59 p.m. on 20 August 2012.

That same night, Defendant visited the home of his friend, Ellie Graham

(“Graham”), in Rose Hill, North Carolina. Graham initially testified that “it was a

little after 9:00 [p.m.] when [Defendant] came to my house[,]” but later testified that

Defendant arrived “somewhere between 9:00 [p.m.] and 11:00 [p.m.]” Graham

testified that during a thirty minute visit, Defendant “wasn’t himself that day”

because he was crying, and was generally distraught about marital problems he was

having with his wife. Graham testified that other than Defendant having red eyes

associated with crying, he did not notice anything different about Defendant’s

physical appearance. Graham testified that Defendant was alone, and that

Defendant stated he needed to borrow some money so he could pick Stephens up from

work that night.

The following day, Defendant and Stephens returned to Jones’ house around

4:00 p.m. with a motorcycle, later identified as Bouyer’s. Defendant and Stephens

told Jones they would like the motorcycle to be stretched out and lowered, and would

like a mural to be painted on its side. Jones told them that he could not start work

on the motorcycle until they either purchased the required parts or paid him so he

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could order the parts himself. Defendant and Stephens did not have any money with

them at the time, so the motorcycle was parked in a field adjacent to Jones’ house.

A few days later, Defendant and Stephens returned to Jones’ house to ask

whether he could sell the bike or otherwise “get rid of it for them.” Jones responded

that he would be unable to find a buyer without the proper paperwork, but if he was

provided with the title to the motorcycle, he would attempt to find a buyer. During

that visit, Jones asked Defendant and Stephens whether they “finally [got their]

money problem straightened out.” Jones testified that Defendant responded “that

any problem that they had, any money – any problem that they had had been taken

care of, and then [Defendant] looked at [Stephens], and [Stephens] smiled, and that

was the end of that conversation.”

A. Law Enforcement Investigation

Bouyer’s body was discovered the morning of 21 August 2012 around 7:30 a.m.

Among the evidence collected at the scene by law enforcement was: a motorcycle

helmet, later identified as Bouyer’s; a broken cell phone; a pear; and a spent 9-

millimeter shell casing, found one hundred yards from the body. Deputy George

Garner (“Deputy Garner”), of the Duplin County Sheriff’s Office, was asked to assist

in identifying the phone number for the phone that was found at the scene. After

identifying the phone number, a subpoena was issued for the subscriber information

on the number, which in turn allowed Deputy Garner to determine that the phone

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Opinion of the Court

belonged to Bouyer. The Duplin County Sheriff’s Office also requested and received

cell phone records of Defendant and Stephens, among others.

Records from the cell phones of Defendant, Stephens, and Bouyer provided

information regarding phone calls and text messages between Stephens and Bouyer,

and the relative locations of the three phones on the night of 20 August 2012. First,

the call detail records from the phones of Bouyer, Stephens, and Defendant confirmed

that many of the phone calls Bouyer placed and received on 20 August 2012 were to

and from the cell phone number identified as belonging to Stephens. That day,

Bouyer called Stephens four times, and Stephens called Bouyer eleven times. The

call detail records show that Defendant’s phone was never used to call, and did not

receive a call from, Bouyer’s phone on 20 August 2012.

Next, the text detail records show multiple text messages between Stephens

and Bouyer regarding, presumably, the purchase of Bouyer’s motorcycle. Stephens

texted Bouyer at 7:29 p.m. on 20 August 2012 that they would “[m]eet . . . at Small

Towns,” and two minutes later, texted Bouyer that “[w]e are buying it today, ill [sic]

let u [sic] use my card [sic] to get back tour [sic] crib.” The call detail records also

show that Defendant’s phone was never used to send a message to, nor did it ever

receive a message from, Bouyer’s phone.

Finally, the call detail records, through the use of historical cell site analysis,

also provided some evidence of the relative location of the phones of Bouyer,

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Defendant, and Stephens on the night of 20 August 2012. At trial, Agent William

Williams (“Agent Williams”), of the Federal Bureau of Investigation, testified that

the last two phone calls made to Bouyer’s phone that resulted in location data being

collected were made at 8:20 p.m. and 8:36 p.m. on 20 August 2012. When those calls

were received, Bouyer’s cell phone utilized a specific cell tower and sector: tower 4c4,

sector 2. Agent Williams testified that both the BP station and Bouyer’s residence

were within the “footprint” of tower 4c4, sector 2, meaning calls made from those

locations would likely be routed through that tower and sector. Regarding Stephens’

phone, Agent Williams testified that at 8:36 p.m. and 8:39 p.m. on 20 August 2012,

Stephens’ phone utilized that same tower and sector, which indicated that his phone

and Bouyer’s phone “would have been within the footprint of this particular tower,”

meaning that they “were relatively close together.” Stephens’ phone then utilized the

same tower, but a different sector, sector 3, five times on 20 August 2012, at 9:15

p.m., 9:17 p.m., 9:19 p.m., 9:20 p.m., and 9:55 p.m. According to Agent Williams,

tower 4c4, sector 3 was significant because it was the sector in which Bouyer’s body

was discovered the next morning.

Regarding Defendant’s phone, Agent Williams testified that it utilized tower

4c4, sector 1 four times between 9:39 p.m. and 9:48 p.m. Three of those calls – at 9:43

p.m., 9:45 p.m., and 9:48 p.m. – were between Stephens’ and Defendant’s phones.

Agent Williams explained that tower 4c4, sector 1, “points” to the northeast, towards

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Warsaw. Defendant’s phone then utilized a different tower, tower 4bf, sector 1, near

Rose Hill, at 11:04 p.m. Though Defendant’s phone made and received a total of

eighty-nine calls on 20 August 2012, it never utilized tower 4c4, sector 3 on that date.

Lieutenant Michael Stevens (“Lt. Stevens”), an investigator with the Duplin

County Sheriff’s Office, retrieved the security footage from the BP station. Lt.

Stevens, who was a friend of Bouyer, knew Bouyer worked as a truck driver and

would often park his truck in the BP station parking lot when it was not in use. While

at the BP station retrieving the surveillance footage, Lt. Stevens noticed Bouyer’s

truck in the parking lot. In searching the truck, the title to Bouyer’s Suzuki

motorcycle was located.

After reviewing the call detail records and viewing the BP surveillance footage,

law enforcement deemed Stephens a suspect and began surveillance of him on 24

August 2012. During the surveillance, officers observed Stephens leave the Subway

restaurant in Rose Hill, North Carolina where he worked, in Defendant’s Jeep.

Following him from the Subway, officers observed Defendant and Stephens make

stops at several locations, and eventually followed the pair to Jones’ residence. As a

result of the surveillance, law enforcement seized Bouyer’s motorcycle from the field

adjacent to Jones’ residence.

Law enforcement obtained a warrant to search Defendant’s Jeep on 28 August

2012. From the Jeep, law enforcement retrieved a wallet, found underneath the

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Opinion of the Court

center console of the vehicle. The wallet contained Bouyer’s North Carolina

registration card identifying him as the owner of a Suzuki motorcycle. Subsequent

forensic testing revealed Defendant’s DNA on the wallet. Law enforcement also

found a bag containing a pear in the back cargo area of the Jeep.

The same day, law enforcement also obtained and executed a search warrant

on Defendant’s home, where both he and Stephens lived. In Stephens’ bedroom, law

enforcement recovered a motorcycle helmet, in which subsequent testing revealed the

presence of Stephens’ DNA, but not Defendant’s or Bouyer’s. At the time the search

was executed, Defendant’s bedroom door was locked and had to be forced open. In

Defendant’s bedroom, law enforcement discovered a Lorcin 9-millimeter handgun

hidden inside the frame of an electric heater, along with a box of 9-millimeter bullets.

A credit card belonging to Stephens was found in Defendant’s closet, indicating that

both Defendant and Stephens “seemed to occupy that residence” and had regular

access to the entire house. Subsequent forensics testing confirmed that the 9-

millimeter shell casing found one hundred yards from Bouyer’s body had been fired

from the 9-millimeter handgun found hidden in Defendant’s bedroom. Police also

found shotgun shell wadding in the backyard of the residence, and a pear tree in the

backyard of the adjoining residence. No shotgun was recovered from Defendant’s and

Stephens’ residence.

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Opinion of the Court

Items seized from both Defendant’s car and home, including a pair of Stephen’s

shoes; a pair of Defendant’s shoes; a pair of Defendant’s pants; the front and rear floor

mats from Defendant’s Jeep; the rear cargo floor lining from Defendant’s Jeep; a pair

of gloves; and a black trash bag, among others, were sent to the North Carolina State

Crime Lab for testing. None of the items seized from Defendant or Stephens tested

positive for the presence of blood. Based on the evidence collected throughout the

investigation, a warrant for Defendant’s arrest was issued 7 September 2012.

B. Indictment and Trial

Defendant was indicted by a grand jury on 6 October 2014, and his trial began

on 20 April 2015. At trial, the State presented the testimony of thirty-seven witnesses

over a span of six days. At the conclusion of the State’s case, Defendant’s counsel

made the following motion:

[Defendant’s Counsel]: If Your Honor please, the defendant
would -- as to Count 1 of the indictment charging murder
by premeditation and deliberation, we would ask for a
directed verdict. We would acknowledge that there’s
enough to go to the jury on the felony murder, but I do
not – no premeditation or deliberation would be supported.

After hearing from the State, Defendant’s counsel clarified that the motion for a

directed verdict included counts two - four of the indictment, on the charges of felony

larceny, robbery with a dangerous weapon, and possession of stolen goods. The trial

court denied Defendant’s motion.

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The jury returned a verdict on 1 May 2015 finding Defendant guilty of first-

degree murder in the perpetration of a felony only; it specifically declined to find

Defendant guilty of first-degree murder on a theory of premeditation and

deliberation. The jury also convicted Defendant of felony larceny, robbery with a

dangerous weapon, and possession of stolen goods. After the verdict was announced,

Defendant moved “to set aside the verdict for lack of evidence and for legal errors.”

The trial court denied Defendant’s motion. The trial court then entered judgments

in accordance with the jury’s verdict, and sentenced Defendant to life imprisonment

without the possibility of parole on the charge of first-degree murder, and to a

concurrent term of imprisonment between sixty-four and eighty-nine months for the

other three convictions. Defendant appeals.

II. Analysis

Defendant contends the trial court erred by denying his motion to dismiss and

failing to arrest judgment on the three felonies underlying his conviction for felony

first-degree murder. He also contends the trial court plainly erred by allowing the

introduction of testimony regarding his attempts to hire an attorney.

A. Denial of Defendant’s Motion to Dismiss

Defendant argues the trial court erred in failing to dismiss for insufficient

evidence the charges of robbery with a dangerous weapon, larceny, and first-degree

murder. As a preliminary matter, we must determine whether this argument has

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been properly preserved for our review. As noted, Defendant moved for directed

verdict on the charge of first-degree murder under a theory of premeditation and

deliberation at the close of State’s evidence, but conceded at that time “that there’s

enough to go to the jury on the felony murder.” Before the trial court ruled on the

directed verdict motion, Defendant clarified that the motion was also made as to

counts two - four of the indictment, those being the charges of larceny, robbery with

a dangerous weapon, and possession of stolen goods. After the motion was denied

and the jury returned its verdicts, Defendant then made a separate motion “to set

aside the verdict for lack of evidence and for legal errors,” which was also denied.

In State v. Mercer, 317 N.C. 87, 343 S.E.2d 885 (1986), our Supreme Court

explained that a defendant’s motion “to set aside the verdict as being against the

weight of the evidence” is “properly denominated a motion for dismissal for

insufficiency of the evidence to sustain a conviction . . . after return of a verdict of

guilty and before entry of judgment, [N.C. Gen. Stat.] § 15A-1227(a)(3).” Mercer, 317

N.C. at 99-100, 343 S.E.2d at 893 (citation and quotation marks omitted, alteration

in original). Given that Defendant’s motion in the present case was nearly identical

to that made by the Mercer defendant, we likewise treat Defendant’s motion as a

motion to dismiss pursuant to N.C.G.S. § 15A-1227(a)(3). Id.

N.C.G.S. § 15A-1227(a)(3) provides in relevant part: “A motion for dismissal

for insufficiency of the evidence to sustain a conviction may be made . . . [a]fter return

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Opinion of the Court

of a verdict of guilty and before entry of judgment.” N.C. Gen. Stat. § 15A-1227(a)(3)

(2015). The statute also specifically provides that a “[f]ailure to make the motion at

the close of the State’s evidence or after all the evidence is not a bar to making the

motion at a later time,” and that “[t]he sufficiency of all evidence introduced in a

criminal case is reviewable on appeal without regard to whether a motion has been

made during trial[.]” N.C. Gen. Stat. §§ 15A-1227(b),(d) (2015). Notwithstanding

Defendant’s anomalous concession that the evidence presented by the State was

sufficient to withstand a motion for a directed verdict as to the charge of first-degree

murder in the perpetration of a felony, we are satisfied that Defendant’s latter

motion, standing alone, was sufficient to properly preserve this issue for our review.

In accord with precedent, we interpret that motion, styled by Defendant’s counsel as

a motion “to set aside the verdict for lack of evidence and for legal errors,” as a motion

to dismiss pursuant to N.C. Gen. Stat. § 15A-1227(a)(3). Because Defendant’s § 15A-

1227(a)(3) motion was made as to all of the convictions against him – including his

conviction for first-degree felony murder – we conclude that Defendant properly

moved to dismiss each of the charges against him, and consider the merits of

Defendant’s argument.

This Court reviews a trial court’s denial of a motion to dismiss de novo. State

v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v. McKinnon,

306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). Our review of a trial court’s ruling

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on a motion to dismiss is the same regardless of when the motion was made. State v.

Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). In ruling on a motion to dismiss,

“the trial court need determine only whether there is substantial evidence of each

essential element of the crime and that the defendant is the perpetrator. Substantial

evidence is that amount of relevant evidence necessary to persuade a rational juror

to accept a conclusion.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d 824, 826

(2015) (citation and quotation marks omitted). “The terms ‘more than a scintilla of

evidence’ and ‘substantial evidence’ are in reality the same and simply mean that the

evidence must be existing and real, not just seeming or imaginary.” State v.

Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982) (citation omitted). In

reviewing the trial court’s ruling, we must evaluate the evidence in the light most

favorable to the State, and all contradictions in the evidence must be resolved in its

favor. State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983). The State

is entitled to every reasonable intendment and every
reasonable inference to be drawn therefrom; contradictions
and discrepancies are for the jury to resolve and do not
warrant dismissal; and all of the evidence actually
admitted, whether competent or incompetent, which is
favorable to the State is to be considered by the court in
ruling on the motion.

Winkler, 368 N.C. at 574, 780 S.E.2d at 826 (citation omitted).

“If the trial court finds substantial evidence, whether direct or circumstantial,

or a combination, to support a finding that the offense charged has been committed

and that the defendant committed it, the case is for the jury and the motion to dismiss

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Opinion of the Court

should be denied.” Id. (citation omitted). “Ultimately, the question for the court is

whether a reasonable inference of defendant’s guilt may be drawn from the

circumstances.” State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citation

omitted). If, however, the evidence presented at trial is “sufficient only to raise a

suspicion or conjecture as to either the commission of the offense or the identity of

the defendant as the perpetrator, the motion to dismiss must be allowed.” State v.

Golphin, 352 N.C. 364, 458, 533 S.E.2d 168, 229-30 (2000) (citation omitted).

Felony murder is defined in N.C. Gen. Stat. § 14-17 as: “A murder

which . . . shall be committed in the perpetration or attempted perpetration of any

arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed

or attempted with the use of a deadly weapon shall be deemed to be murder in the

first degree[.]” N.C. Gen. Stat. §14-17(a) (2015). “[T]he elements necessary to prove

felony murder are that [1] the killing took place [2] while the accused was

perpetrating or attempting to perpetrate one of the enumerated felonies [in N.C.G.S.

§ 14-17].” State v. Bunch, 363 N.C. 841, 846-47, 689 S.E.2d 866, 870 (2010) (quotation

omitted). When the jury returned its verdict finding Defendant guilty of first-degree

felony murder, it indicated that the felonies underlying the murder conviction were

larceny, robbery with a dangerous weapon, and possession of stolen goods. As

Defendant only argues that the State failed to present “substantial evidence” that he

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was the perpetrator of larceny and robbery with a dangerous weapon, we only address

those two crimes.1

Defendant was convicted of felony larceny, pursuant to N.C. Gen. Stat. § 14-

72(a), and robbery with a dangerous weapon, pursuant to N.C. Gen. Stat. § 14-87.

Defendant does not argue that the State failed to present substantial evidence that

larceny and robbery with a dangerous weapon occurred; rather, the gravamen of

Defendant’s argument is that the State failed to provide substantial evidence that

Defendant was the perpetrator of those two offenses. We disagree.

The State presented evidence tending to show that, in the days prior to 20

August 2012, Defendant and Stephens visited Jones’ residence and were interested

in changing the appearance of a motorcycle, though they did not have a motorcycle

with them at the time. Through a multitude of witnesses, the State then presented

a timeline of Defendant’s, Stephens’, and Bouyer’s movements on the evening of 20

August 2012 from roughly 6:00 p.m. until 8:59 p.m. At 8:59 p.m., Bouyer departed a

meeting with Defendant and Stephens that occurred in the parking lot of the BP

station, and all three men were seen heading off in the same direction. Defendant

and Stephens were the last to see Bouyer until his body was discovered early the next

1 While Defendant concedes there was substantial evidence that he committed the crime of
possession of stolen goods, he argues that possession of stolen goods may never serve as the predicate
felony for a felony first-degree murder conviction. Because we determine the State presented
substantial evidence on the robbery with a dangerous weapon and larceny charges, we do not address
this argument.

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morning. In the days following the discovery of Bouyer’s body, Defendant and

Stephens were in possession of Bouyer’s motorcycle – the same motorcycle Bouyer

was last seen riding at 8:59 p.m. on 20 August 2015. Evidence presented by the State

showed Defendant and Stephens delivered Bouyer’s motorcycle to Jones in the days

after Bouyer’s death, attempted to have the appearance of the motorcycle altered, and

later pursued its sale or destruction.

Other evidence suggested Defendant’s presence at the scene where Bouyer’s

motorcycle was taken, in that Stephens and Defendant were last seen leaving the BP

station together in Defendant’s Jeep at 8:59 p.m. Stephens’ cellphone was then used

a total of four times within twenty-one minutes of 8:59 p.m. in the “footprint” of tower

4c4, sector 3, the cell tower and sector in which Bouyer’s body was later discovered.

Defendant’s DNA was found on Bouyer’s wallet, which in turn was discovered in

Defendant’s Jeep. The evidence also suggested that two guns were used at the scene

where Bouyer’s body was later found; Bouyer was killed by three shots from a

shotgun, and a spent 9-millimeter shell casing was also found within one hundred

yards of Bouyer’s body. Forensic testing matched the spent shell casing to a Lorcin

9-millimeter handgun later found hidden in Defendant’s bedroom.

The evidence presented by the State at trial allowed a reasonable inference

that Defendant participated in the robbery and larceny of Bouyer’s motorcycle, and

that Bouyer was killed during that robbery and larceny. To the extent that some

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Opinion of the Court

evidence suggested Defendant was alone for a portion of the night, when visiting

Graham, and tended to show that Defendant’s cellphone was never used within the

footprint of Tower 4c4, sector 3, these “contradictions and discrepancies [were] for the

jury to resolve and [did] not warrant dismissal.” Winkler, 368 N.C. at 574, 780 S.E.2d

at 826. In sum, we hold that the State presented substantial evidence to allow the

jury to draw a reasonable inference that Defendant was the perpetrator of robbery

with a dangerous weapon and larceny. Lee, 348 N.C. at 488, 501 S.E.2d at 343. While

much of this evidence was circumstantial, circumstantial evidence is all a trial court

needs to deny a defendant’s motion to dismiss for insufficient evidence, and it is then

for the jury to resolve conflicts in the evidence and determine the defendant’s guilt

beyond a reasonable doubt. Winkler, 368 N.C. at 574, 780 S.E.2d at 826. The trial

court did not err in denying Defendant’s motion to dismiss.

B. Evidence Regarding Defendant’s Attempts to Hire An Attorney

Defendant argues the trial court erred in allowing the introduction of evidence

regarding Defendant’s attempts to hire legal counsel prior to his arrest. As Defendant

concedes, he failed to timely object at trial to the testimony regarding his efforts to

hire an attorney. Due to that failure, the State contends that Defendant has waived

all appellate review of the issue, including our review for plain error. As support for

this proposition, the State cites State v. Houser, ___ N.C. App. ___, ___, 768 S.E.2d

626, 632 (2015), in which this Court held that “Constitutional issues not raised and

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Opinion of the Court

passed upon at trial will not be considered for the first time on appeal, not even for

plain error.” Houser, ___ N.C. App. at ___, 768 S.E.2d at 632 (quoting State v. Gobal,

186 N.C. App. 308, 651 S.E.2d 279 (2007), aff’d per curiam, 362 N.C. 342, 661 S.E.2d

732 (2008) (footnote and citations omitted)). However, our Supreme Court recently

reaffirmed that where an alleged constitutional error occurs during either

instructions to the jury or on evidentiary issues, an appellate court must review for

plain error if it is specifically and distinctly contended:

[W]e apply the general rule that “failure to raise a
constitutional issue at trial generally waives that issue for
appeal.” [State v. Wilson, 363 N.C. 478, 484, 681 S.E.2d
325, 330 (2009)]. Nevertheless, because the alleged
constitutional error occurred during the trial court’s
instructions to the jury, we may review for plain error. State
v. Cummings, 352 N.C. 600, 612-13, 536 S.E.2d 36, 47
(2000) (quoting State v. Greene, 351 N.C. 562, 566, 528
S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 121 S. Ct. 635,
148 L. Ed. 2d 543 (2000) (“[W]e have previously decided
that plain error analysis applies only to instructions to the
jury and evidentiary matters.”)), cert. denied, 532 U.S. 997,
121 S. Ct. 1660, 149 L. Ed. 2d 641 (2001).

State v. May, 368 N.C. 112, 118, 772 S.E.2d 458, 462-63 (2015) (emphasis added).

Our Supreme Court has conducted plain error review in cases in which the defendant

asserted on appeal that the introduction of evidence and testimony violated their

constitutional rights, despite the lack of an objection at trial. See, e.g., State v. Moore,

366 N.C. 100, 104-05, 726 S.E.2d 168, 172 (2012); State v. Raines, 362 N.C. 1, 16-17,

653 S.E.2d 126, 136 (2007).

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In the present case, Defendant argued in his brief to this Court that admission

of portions of two witnesses’ testimony, admitted without Defendant’s objection, was

erroneous, and admission of the testimony violated his Sixth Amendment rights.

Since this argument is rooted in an “evidentiary matter[],” Greene, 351 N.C. at 566,

528 S.E.2d at 578, we consider whether introduction of this evidence amounted to

plain error.2 See State v. Garcell, 363 N.C. 10, 53, 678 S.E.2d 618, 645 (2009); N.C.

R. App. P. 10(a)(4). The plain error rule

is always to be applied cautiously and only in the
exceptional case where, after reviewing the entire record,
it can be said the claimed error is a “fundamental error,
something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done,” or “where
[the error] is grave error which amounts to a denial of a
fundamental right of the accused,” or the error has
“‘resulted in a miscarriage of justice or in the denial to
appellant of a fair trial’” or where the error is such as to
“seriously affect the fairness, integrity or public reputation
of judicial proceedings” or where it can be fairly said
“the . . . mistake had a probable impact on the jury’s finding
that the defendant was guilty.”

Cummings, 352 N.C. at 616, 536 S.E.2d at 49 (alterations in original) (quoting State

v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). To prevail, a defendant

must show “not only that there was error, but that absent the error, the jury probably

2 To be entitled to plain error review, a defendant must “specifically and distinctly contend
that the alleged error constituted plain error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,
333 (2012). Here, Defendant has done so; therefore, we proceed to a plain error analysis.

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Opinion of the Court

would have reached a different result.” State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d

594, 602 (2003) (internal quotation marks and citation omitted).

Defendant contends the State improperly elicited statements from two

witnesses regarding his attempts to hire a lawyer, and that these statements likely

affected the jury’s verdict. First, one of the law enforcement officers involved in the

case, Lieutenant Andrew Hanchey (“Lt. Hanchey”), explained from the witness stand

that a notepad was among the evidence recovered during a search of Defendant’s

wife’s car. At the prompting of the prosecutor, Lt. Hanchey testified that the notepad

contained a note which read “lawyers to call” and listed the names of several law

firms. Second, McGowan, the clerk at the BP station, was asked by the prosecutor to

recall all instances in which she had seen Defendant and Stephens after Bouyer’s

body had been discovered. McGowan recounted her last encounter with Defendant:

[Prosecutor:] . . . [W]hen was the next time you saw
[Defendant]?

[McGowan:] He came in the store. I’m not sure the date,
but it’s the date that he got arrested. He came in the store.
I was working second shift that day, and he had a little,
yellow notepad, and he was trying to get me to write my
name and my address and stuff down, because he said that
they were going to get a lawyer and, you know, “Put your
information down right here so we can go get this lawyer.”

[Prosecutor:] Did you agree to do that?

[McGowan:] No.

[Prosecutor:] Why not?

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Opinion of the Court

[McGowan:] I told [Defendant] that I didn’t need a lawyer,
that guilty people need a lawyer, and I wanted him to leave
me alone.

This particular exchange ended that day’s testimony; except for mentioning the

exchange as a reference point for resuming McGowan’s testimony the following day,

the prosecutor did not ask any additional questions regarding Defendant’s attempts

to hire an attorney.

The Sixth Amendment to the United States Constitution guarantees that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance

of counsel for his defense.” U.S. CONST. Amend. VI. This fundamental right was made

applicable to the States through the Fourteenth Amendment, see, e.g., McMann v.

Richardson, 397 U.S. 759, 25 L. Ed. 2d 763 (1970); State v. Wise, 64 N.C. App. 108,

306 S.E.2d 569 (1983), and includes the right of an accused to select an attorney of

his or her choice. State v. Yelton, 87 N.C. App. 554, 559, 361 S.E.2d 753, 757 (1987).

Our Supreme Court has held that “there are ‘no special circumstances that would

justify use of a constitutional privilege to discredit or convict a person who asserts

it[;] [t]he value of constitutional privileges is largely destroyed if persons can be

penalized for relying on them.’” State v. Ladd, 308 N.C. 272, 284, 302 S.E.2d 164,

172 (1983) (quoting Grunewald v. United States, 353 U.S. 391, 425, 1 L. Ed. 2d 931,

955 (1956) (Black, J., concurring)).

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Opinion of the Court

We have no difficulty concluding that the two exchanges violated Defendant’s

Sixth Amendment right to counsel, and should not have been admitted into evidence.

Lt. Hanchey’s statement served no purpose other than to inform the jury that

Defendant had attempted to hire an attorney prior to his arrest. Likewise,

McGowan’s opinion that only “guilty people need a lawyer” is the epitome of using “a

constitutional privilege to discredit or convict a person who asserts it.” Ladd, 308

N.C. at 284, 302 S.E.2d at 172. Having determined that admission of these

statements was error, we consider whether admission of these statements amounted

to plain error. We hold that it did not.

A review of the transcript reveals that, while the prosecutor in this case elicited

Lt. Hanchey’s testimony regarding the “lawyers to call” note, the prosecutor did not

emphasize or highlight Defendant’s exercise of his rights, and questioning

immediately moved on to other subjects. With regard to McGowan’s testimony that

“only guilty people need lawyers,” we note that the prosecutor’s question which

elicited this response was relatively innocuous – the prosecutor merely asked

McGowan why she declined to give Defendant her contact information. After

McGowan gave her inflammatory answer, the prosecutor declined to capitalize on or

to emphasize McGowan’s comments. See Moore, 366 N.C. at 106-107, 726 S.E.2d at

173-74 (holding that statements of a witness regarding the defendant’s invocation of

his constitutional rights did not amount to plain error where the prosecutor “did not

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Opinion of the Court

emphasize, capitalize on, or directly elicit [the witness’s] prohibited responses”); State

v. Alexander, 337 N.C. 182, 196, 446 S.E.2d 83, 91 (1994) (finding no plain error where

the prosecutor asked a State’s witness, a police officer, if the defendant spoke or

talked to him, and noting that the comments were “relatively benign” and that the

prosecutor did not emphasize that the defendant did not speak with law enforcement

after his arrest). Given the passing nature of these statements, the lack of emphasis

or detailed discussion of these comments by the prosecutor, and the voluminous

amount of other testimony and evidence received throughout this case, we do not

believe the statements by Lt. Hanchey and McGowan “had a probable impact on the

jury’s finding that [D]efendant was guilty.” Cummings, 352 N.C. at 616, 536 S.E.2d

at 49. Therefore, admission of the testimony was not plain error.

C. Failure to Arrest Judgment/Vacatur of Underlying Felonies

Defendant next argues the trial court erred by failing to arrest judgment on all

of the felonies underlying his felony first-degree murder conviction. The State

concedes the error, but maintains the proper remedy is to arrest judgment on

Defendant’s robbery with a dangerous weapon conviction, and vacate the larceny and

possession of stolen goods convictions.

In its verdict, the jury indicated it had determined that the robbery with a

dangerous weapon, larceny, and possession of stolen goods convictions served as the

predicate felonies underlying Defendant’s conviction for first-degree felony murder.

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Opinion of the Court

Our Supreme Court has held that when a defendant is convicted of felony murder,

“the underlying felony supporting a conviction for felony murder merges into the

murder conviction. The underlying felony provides no basis for an additional

sentence, and any judgment imposed thereon must be arrested.” State v. Barlowe,

337 N.C. 371, 381, 446 S.E.2d 352, 358-59 (1994); see also State v. Millsaps, 356 N.C.

556, 560, 572 S.E.2d 767, 770 (2002) (noting that conviction of the underlying felony

“constitutes an element of first-degree murder,” requiring merger for sentencing

purposes). Following this rule in the present case, we find the trial court erred in

failing to arrest judgment on Defendant’s conviction for robbery with a dangerous

weapon.

Normally, “[o]nly one underlying felony is necessary to support a felony-

murder conviction[.]” Barlowe, 337 N.C. at 381, 446 S.E.2d at 358. While the merger

rule “requires the trial court to arrest judgment on at least one of the underlying

felony murder convictions if two separate convictions supported the conviction for

felony murder,” the trial court is permitted to use its “discretion to select which felony

conviction would serve as the underlying felony.” State v. Ridgeway, 185 N.C. App.

423, 437, 648 S.E.2d 886, 896 (2007) (emphasis added) (citations and internal

quotation marks omitted). The other felony convictions are not required to be

arrested under the merger rule. Id.

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Opinion of the Court

Application of this rule would suggest that a remand to the trial court is

necessary for it to exercise discretion in choosing which of the three felonies on which

to arrest judgment. However, remand for this purpose is not needed in the present

case because the three felonies underlying Defendant’s first-degree murder conviction

are not “separate convictions.” Defendant’s convictions for robbery with a dangerous

weapon, larceny, and possession of stolen goods all related to the same event – the

taking and subsequent possession of Bouyer’s motorcycle. Our Supreme Court has

held that felony larceny is a lesser-included offense of robbery with a dangerous

weapon when both charges stem from the same taking. See State v. Cobb, 150 N.C.

App. 31, 43, 563 S.E.2d 600, 609 (2002) (citing State v. White, 322 N.C. 506, 518, 369

S.E.2d 813, 819 (1988)). A trial court “violate[s] federal and state constitutional

principles against double jeopardy,” when it sentences a defendant for a robbery with

a dangerous weapon and larceny arising out of the same taking, and the proper

remedy is to arrest judgment on the larceny conviction. State v. Jaynes, 342 N.C.

249, 276, 464 S.E.2d 448, 465 (1995) (citing State v. Adams, 331 N.C. 317, 333, 416

S.E.2d 380, 389 (1992)).

Similarly, our Supreme Court has held that while “[l]arceny and possession of

property stolen in the larceny are separate crimes” because “[e]ach crime requires

proof of an additional fact which the other does not,” our General Assembly “did not

intend to punish an individual for receiving or possession of the same goods that he

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Opinion of the Court

stole.” State v. Perry, 305 N.C. 225, 234-37, 287 S.E.2d 810, 815-17 (1982), overruled

in part on other grounds by State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916

(2010); see also State v. Moses, 205 N.C. App. 629, 640, 698 S.E.2d 688, 696 (2010)

(noting that the “Legislature . . . did not intend to subject a defendant to multiple

punishments for both robbery and the possession of stolen goods that were the

proceeds of the same robbery”). In Perry, a case in which the defendant was convicted

of both larceny and possession of the goods stolen in that larceny, our Supreme Court

chose to vacate the possession of stolen goods conviction, rather than arrest judgment

on that conviction. Perry, 305 N.C. at 237, 287 S.E.2d at 817. Following Perry, we do

the same in the present case.

III. Conclusion

The State presented “substantial evidence” that Defendant was the

perpetrator of the crimes for which he was charged and convicted, and the trial court

did not err in denying Defendant’s motion to dismiss the charges of first-degree felony

murder, robbery with a dangerous weapon, and larceny. The trial court erred in

admitting the two statements elicited by the State regarding Defendant’s attempts

to hire an attorney. Those statements violated Defendant’s Sixth Amendment right

to counsel. However, given the passing nature of those statements, the circumstances

in which they arose, and the voluminous other evidence presented against Defendant

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Opinion of the Court

in the course of his trial, we conclude that the error did not likely affect the jury’s

verdict and for that reason did not amount to plain error.

Regarding Defendant’s sentencing, the trial court’s judgment of life in prison

without the possibility of parole corresponding with Defendant’s conviction for first-

degree felony murder remains undisturbed. However, we arrest judgment on

Defendant’s convictions for robbery with a dangerous weapon and larceny, and vacate

Defendant’s conviction for possession of stolen goods.

NO ERROR IN PART; NO PLAIN ERROR IN PART; JUDGMENT

ARRESTED IN PART; VACATED IN PART.

Judges STROUD and INMAN concur.

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